The Strange New Meaning of “Religious Freedom”

Whatever ultimately happens in various ongoing collisions between conservative clergy and laws to which they object, it is clear the former have already won a significant victory in convincing millions of Americans that “religious freedom” means the right to have one’s particular religious views explicitly reflected in public policy. That is definitely the position of the nation’s Catholic bishops, who contend they should be able to operate a wide range of quasi-public services and also enjoy the use of public subsidies, while refusing to comply with laws and regulations that contradict their religious or moral teachings.

I’ve argued in the past that what the bishops are actually seeking is not “freedom” but a sort of unwritten concordat–a broad zone of immunity from laws they choose to regard as offensive. Now there is nothing terribly unusual or inherently outrageous about this desire; Vatican diplomacy for centuries has focused on the establishment of such arrangements–though typically written rather than plenary–with a wide array of governments. It’s the idea that this sort of arrangement involves “freedom” rather than frankly acknowledged special privileges that’s novel. And it leads to some rather strange conclusions, viz. this conservative post celebrating an anti-Obama protest in San Francisco and identifying special concessions to religious groups as an example of “American exceptionalism:”

Friday, one thousand Bay Area Catholics gathered outside the Federal Building in San Francisco to celebrate America’s exceptional guarantee of freedom of religion, and defend against an unprecedented assault by the Obama Administration.

The rally was among the largest of over 100 protests by Catholics around the nation on the second (ahem) birthday of Obamacare.

From the podium, Northern California Catholic religious and secular leaders openly urged citizens to register to vote and cast ballots against President Obama in the general election, in what they called an end to “quiet conformity” by religious Americans….

The City Square, a Bay Area blog, described this religious backlash as nothing less than the opening of a second front in the “war for freedom”, alongside the Tea Party movement’s economic freedom agenda.

That is indeed an apt comparison, since the Tea Party, too, has a very special definition of “freedom.”

Still, it’s odd to hear people describe the kind of concessions to broad rights of religious self-regulation that are exceedingly common in countries without a constitutional history of church-state separation as peculiarly American.

And it’s not a view that’s been smiled upon very often by the official arbitors of the Constitution, the federal courts, as Sarah Posner recently explained at Religion Dispatches:

Conservative claims of infringement of religious freedom…are on shaky constitutional footing. Although Catholic Charities lost challenges to similar policies in state courts in California and New York, several Catholic and evangelical universities have sued HHS in federal courts around the country, charging that the contraception coverage requirement violates their religious freedom. While a federal court has yet to rule on the mandate, a ruling issued late Friday night demonstrates how the claim of infringement of religious freedom undermines the First Amendment’s prohibition on government establishment of religion.

In that case, the American Civil Liberties Union had challenged an HHS policy allowing the USCCB, which received funding under the Trafficking Victims Protection Act, to refuse to refer victims of rape and sexual assault for contraceptive and abortion services. Although the Bishops and their Republican allies argue that requiring them to refer women and girls for reproductive health services amounted to a government interference with their religious freedom, Judge Richard Stearns held that allowing them to refuse to make these referrals amounted to an impermissible government endorsement of religion.

While that case would not require courts outside of Massachusetts to reach the same conclusion, or to reach the same conclusion in the lawsuits against the insurance coverage requirement, it does provide a roadmap for how a court would weigh a Free Exercise claim against an Establishment Clause claim.

Now some conservative Catholics, and many of their conservative evangelical allies (who have fully internalized David Barton’s revisionist “Christian Nation” theory that the Founders had no intention of fostering church-state separation) would view Judge Stearns’ decision as an exercise in “judicial activism” on the behalf of an aggressively “secularist” agenda. But like the Right’s redefinition of religious freedom itself, this point of view is decidedly recent in origin, and better described as “radical” than as “conservative” in spirit.

But that’s true as well of much of the American Right’s current ideological tendencies. Somehow or other, public programs as well as constitutional doctrines that the country has lived with peacefully since at least the New Deal are being denounced as involving aggressive, sinister, and even Satanic attacks on traditional liberties. That’s the connection between the protesters in San Francisco bearing “Obama the Judas of America” signs and their comrades carrying images of Andrew Breitbart outside the Supreme Court.

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